Johnson v. United Parcel Service, Inc. (UPS)

Filing 70

MEMORANDUM AND ORDER denying 47 Motion for Leave to File Second Amended Complaint. Signed by Judge Stephanie A. Gallagher on 10/1/2019. (bmhs, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
STEPHANIE A. GALLAGHER
UNITED STATES DISTRICT JUDGE

101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
[phone]
Fax [phone]

October 1, 2019
LETTER TO COUNSEL
RE:

Johnson v. United Parcel Service, Inc.
Civil No. SAG-17-1771

Dear Counsel:
Plaintiff Khalilah Johnson (“Plaintiff”) filed this employment discrimination case against
her former employer, Defendant United Parcel Services, Inc. ("UPS"). On September 18, 2019,
this case was transferred to my docket. I have reviewed Plaintiff's Motion for Leave to File Second
Amended Complaint and supporting exhibits (collectively, the “Motion”), ECF 47, Defendant's
Opposition, ECF 51, and Plaintiff's Reply, ECF 59. No hearing is necessary. See Loc. R. 105.6
(D. Md. 2018). For the reasons stated herein, Plaintiff's motion will be denied.
On June 27, 2017, Plaintiff, as a self-represented litigant, filed her original Complaint
against UPS, alleging (1) employment discrimination on the basis of her religion; and (2) disability
discrimination. ECF 1. Approximately six months later, on December 15, 2017, Plaintiff's newly
retained counsel filed an Amended Complaint, ECF 13. The Amended Complaint eliminates the
claim of disability discrimination, id. ¶ 25, but asserts three counts. Count I alleges that UPS
retaliated against Plaintiff for making complaints to UPS about discrimination on the basis of her
religion, Seventh Day Adventist. Id. ¶¶ 1-8. Count II alleges that UPS retaliated against Plaintiff
for requesting, and being awarded, accommodations for her religious obligations. Id. ¶¶ 9-17.
Count III alleges that UPS subjected Plaintiff to a hostile work environment on the basis of her
religion. Id. ¶¶ 18-24. Specifically, Plaintiff worked as a delivery truck driver for UPS, and she
alleges that UPS’s discriminatory conduct consisted of overloading and failing to organize the
truckloads she was assigned for delivery, which placed her in danger of injury and extended her
workday beyond the time she needed to leave under the terms of her religious accommodation. Id.
On April 9, 2019, Plaintiff filed the instant Motion. ECF 47. In the proposed filing,
Plaintiff seeks to add four counts. Id. Count IV alleges that UPS fraudulently filed a 2015 W-2
for Plaintiff, grossly overstating her amount of wages, in violation of 26 U.S.C. § 7434 (2012).
ECF 47-1, ¶¶ 30-43. Count V alleges that the fraudulent W-2 constituted an additional example
of retaliatory conduct. Id. ¶¶ 44-54. Count VI alleges that the fraudulent W-2, and the denial of
Plaintiff’s request for a light duty assignment between July 20, 2015 and December 31, 2015,
contributed to the hostile work environment Plaintiff experienced. Id. ¶¶ 55-59. Count VII seeks
a declaratory judgment that a settlement agreement the parties executed to resolve Plaintiff's
Workers Compensation claim does not bar the claims she asserts in the proposed Second Amended
Complaint. Id. ¶¶ 60-74. The Second Amended Complaint also seeks to add certain factual
allegations in Count III. Id. ¶ 22.

Johnson v. United Parcel Service, Inc.
Civil No. SAG-17-1771
Oct. 1, 2019
Page 2
The question of whether Plaintiff's amendment is appropriate highlights the occasional
tension between two Federal Rules of Civil Procedure. Rule 15(a)(2) states that the Court “should
freely give leave [to amend] when justice so requires.” However, once the Court has set a
scheduling order and the amendment would require a modification, Rule 16(b)(4) dictates that the
“schedule may be modified only for good cause and with the judge's consent.” See Nourison Rug
Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008).
In Nourison, like in the instant case, a party sought amendment of its pleading after the
expiration of the deadline in the scheduling order. Id. at 297. The Fourth Circuit noted that,
“Given their heavy case loads, district courts require the effective case management tools provided
by Rule 16.” Id. at 298. Accordingly, the Fourth Circuit required that the party seeking to modify
the scheduling order meet the good cause requirement of Rule 16(b)(4), before considering the
standard for amendment of a pleading in Rule 15(a)(2). Id. (“[A]fter the deadlines provided by a
scheduling order have passed, the good cause standard must be satisfied to justify leave to amend
the pleadings.”); see also Cook v. Howard, 484 F. App’x 805, 814-15 (4th Cir. 2012) (“[U]nder
Rule 16(b)(4), a party must first demonstrate ‘good cause’ to modify the scheduling order
deadlines, before also satisfying the Rule 15(a)(2) standard for amendment.”). To establish good
cause, the party seeking to amend the scheduling order must “show that the deadlines cannot
reasonably be met despite the party’s diligence,’ and whatever other factors are also considered,
‘the good-cause standard will not be satisfied if the [district] court concludes that the party seeking
relief (or that party’s attorney) has not acted diligently in compliance with the schedule.’” Cook,
484 F. App’x at 815 (quoting 6A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARY KAY
KANE, FEDERAL PRACTICE AND PROCEDURE § 1522.2 (3d ed. 2010)).
Here, Plaintiff has not proffered good cause for her failure to include her W-2 and light
duty-related claims when she filed her Amended Complaint in December, 2017. Clearly, she knew
of those claims by that date, because she would have received the W-2 form in question in 2016,
and the alleged denial of light duty occurred in the latter half of 2015. Moreover, Plaintiff included
those allegations in communications to her EEOC claims investigators in 2016 and 2017. ECF
59-2 at 3. Despite full knowledge of the factual basis for the claims, neither Plaintiff in her original
Complaint, nor Plaintiff's counsel in her Amended Complaint, chose to assert any claims relating
to the W-2 or the denial of light duty.
Plaintiff's proffered explanation for the delay is that she did not “ascertain for certain" until
the discovery period that her wages had been over-reported. ECF 47 at 5; see also ECF 59 at 1
(suggesting that she had obtained "hard, irrefutable evidence" in discovery). Certainty is not the
standard for notice pleading. See Fed. R. Civ. P. 11(b)(3) (requiring that “the factual contentions
have evidentiary support or, if specifically so identified, will likely have evidentiary support after
a reasonable opportunity for further investigation or discovery”); see also EEOC v. Morningside
House of Ellicott City, LLC., No. JKB-11-2766, 2012 WL 1655324, at *2-3 (D. Md. May 9, 2012)
(finding that Plaintiff failed to establish good cause to amend its Complaint after the amendments
deadline because it “likely could have pled its proposed retaliation charge in the original
complaint,” and “certainly” could have before the deadline). Judge Russell’s Scheduling Order
provided a deadline of December 10, 2018 for amendment of pleadings. ECF 30. The parties
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Johnson v. United Parcel Service, Inc.
Civil No. SAG-17-1771
Oct. 1, 2019
Page 3
knew that they could request amendments to the Scheduling Order, and in fact jointly requested
one such amendment on November 7, 2018, but did not seek to extend the deadline for the parties
to amend their pleadings. ECF 31. Plaintiff's present contention, then, that the Court's date for
amendment of pleadings was unfair, is unavailing. “[A] judge's scheduling order is not a frivolous
piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril.”
Potomac Elec. Power Co. v. Elec. Motor Supply, Inc., 190 F.R.D. 372, 375 (D. Md. 1999) (quoting
Gestetner Corp. v. Case Equip. Co., 108 F.R.D. 138, 141 (D. Me. 1985).
Further, even had Plaintiff’s Motion for Leave to file the Second Amended Complaint been
adjudicated shortly after it became ripe, it would have necessitated alterations to the scheduling
order to permit discovery on new claims that could have been brought sixteen months prior, when
the Amended Complaint was filed. In the case's current posture, discovery would have to be
reopened just days before the parties' dispositive motions are due. See ECF 68 (establishing a
dispositive motions deadline of October 7, 2019). In light of Plaintiff's lack of diligence in
asserting her new proposed claims before the Scheduling Order’s deadline, lack of good cause for
the delay, and the effect on the case schedule if her motion were to be granted, her motion to amend
the complaint to add counts IV-VII will be denied.1
Finally, Plaintiff’s proposed changes to the existing three claims for relief would also
require additional discovery. While the Amended Complaint limited the alleged hostile
environment to the overpacking of Plaintiff’s delivery trucks, the proposed amendments within
Count III state, “Defendant discriminated against Plaintiff in terms and conditions of employment
in any manner shown by evidence produced during discovery” and “Defendant’s [religious]
accommodation provided was not reasonable or adequate.” ECF 47-1, ¶ 22(E), (G). Because
those allegations greatly expand the scope of the hostile environment claim Plaintiff asserted in
her Amended Complaint in December, 2017, her motion to amend at this late date will be denied.
For the reasons set forth above, Plaintiff’s Motion for Leave to File Second Amended
Complaint, ECF 47, is DENIED. Despite the informal nature of this letter, it should be flagged as
an Opinion and docketed as an Order.
Sincerely yours,
/s/
Stephanie A. Gallagher
United States District Judge

Regarding Count VII, Plaintiff indicated that this declaratory judgment count was necessary “so
that Plaintiff’s amendments can go forward.” ECF 47 at 8; see also id. at 12. Because the Court
denies Plaintiff’s Motion in all other respects, it is unnecessary for the Court to consider whether
good cause exists to grant Plaintiff leave to add Count VII. Even if such good cause existed, by
Plaintiff’s own representations, the Court’s instant ruling renders Count VII futile.
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